B-213394, DEC 29, 1983

B-213394, DEC 29, 1983

DIGEST: 1. PROTEST THAT THE AWARDEE OBTAINED CONFIDENTIAL INFORMATION PERTAINING TO THE PROTESTER'S PERFORMANCE COSTS AND PROJECTED PROFITS FROM THE PROTESTER'S CERTIFIED PUBLIC ACCOUNTANTS AND INSURANCE COMPANY IS AN ALLEGATION CONCERNING PRIVATE IMPROPER BUSINESS PRACTICES WHICH IS NOT FOR CONSIDERATION UNDER GAO BID PROTEST PROCEDURES. 2. PROTEST BY THE THIRD LOW BIDDER THAT THE SECOND LOW BID SHOULD BE REJECTED AS MATERIALLY UNBALANCED IS DISMISSED SINCE THE PROTESTER WOULD NOT BE IN LINE FOR AWARD IF ITS PROTEST IS UPHELD AND IS THUS NOT AN INTERESTED PARTY UNDER GAO BID PROTEST PROCEDURES. 3. GAO NEED NOT GRANT A REQUEST FOR A CONFERENCE WHERE THE PROTEST IS CLEARLY NOT REVIEWABLE BY GAO AND MAY BE DISMISSED UNDER 4 C.F.R. SEC. 21.3(G) (1983).

JAMES G. TUNISON & CO.:

JAMES G. TUNISON & CO. (TUNISON) PROTESTS THE PROPOSED AWARD OF A CONTRACT UNDER INVITATION FOR BIDS (IFB) NO. F09607-83-B-0027 ISSUED BY THE DEPARTMENT OF THE AIR FORCE TO SOUTH GEORGIA CLEANING SERVICES (SOUTH GEORGIA) FOR CIVIL ENGINEERING SERVICES.

WE DISMISS THE PROTEST.

TUNISON CONTENDS THAT SOUTH GEORGIA HAD AN UNFAIR ADVANTAGE BY OBTAINING CONFIDENTIAL INFORMATION PERTAINING TO TUNISON'S PERFORMANCE COSTS AND PROJECTED PROFITS. TUNISON ALLEGES THAT SOUTH GEORGIA HAD ACCESS TO TUNISON'S PERFORMANCE COSTS AND PROJECTED PROFITS AND MADE USE OF THIS CONFIDENTIAL INFORMATION BECAUSE TUNISON'S CERTIFIED PUBLIC ACCOUNTANTS AND INSURANCE COMPANY ALSO REPRESENTED SOUTH GEORGIA AND BECAUSE ONE OF THE CERTIFIED PUBLIC ACCOUNTANTS AND THE PRESIDENT OF THE INSURANCE COMPANY ARE PARTNERS OF THE PRESIDENT OF SOUTH GEORGIA IN A ANOTHER BUSINESS.

THE AIR FORCE ARGUES THAT THIS PROTEST INVOLVES A DISPUTE BETWEEN TWO PRIVATE PARTIES CONCERNING PROPRIETARY RIGHTS THAT SHOULD BE RESOLVED BY COURT ACTION. WE AGREE. BASICALLY, TUNISON IS ALLEGING PRIVATE IMPROPER BUSINESS PRACTICES ON SOUTH GEORGIA'S PART, A MATTER THAT WILL NOT BE CONSIDERED UNDER OUR BID PROTEST PROCEDURES. KIRK MAYER, INC., B-208582, SEPTEMBER 2, 1983, 83-2 CPD 288.

WHILE TUNISON CITES THE FRANKLIN INSTITUTE, 55 COMP.GEN. 280 (1975), 75-2 CPD 194, AS AUTHORITY FOR OUR OFFICE TO RECOMMEND THE EXCLUSION OF A BIDDER FROM COMPETITION, WE FIND THE CASE DISTINGUISHABLE. THERE, A GOVERNMENT OFFICIAL HAD ACTED IMPROPERLY AND AN AGENCY INVESTIGATION CONFIRMED THE IMPROPER ACTION AND THE TRANSFER OF INFORMATION TO A COMPETITOR. HERE, TUNISON ADMITS IT HAS NO PROOF THAT CONFIDENTIAL INFORMATION WAS CONVEYED TO SOUTH GEORGIA.

TUNISON ALSO CONTENDS THAT THE BID OF THE SECOND LOW BIDDER, M&M SERVICES (M&M), SHOULD BE REJECTED BECAUSE M&M'S BID WAS MATERIALLY UNBALANCED.

HOWEVER, UNDER OUR BID PROTEST PROCEDURES A PARTY MUST BE "INTERESTED" IN ORDER TO HAVE ITS PROTEST CONSIDERED BY OUR OFFICE. 4 C.F.R. SEC. 21.1(A) (1983). WE HAVE CONSISTENTLY HELD THAT A PARTY IS NOT INTERESTED IF IT WOULD NOT BE IN LINE FOR AWARD IF ITS PROTEST WERE UPHELD. PHOTICA, INC., B-211445, JULY 11, 1983, 83-2 CPD 74. SINCE SOUTH GEORGIA REMAINS THE LOW BIDDER REGARDLESS OF OUR DISPOSITION OF M&M'S BID, TUNISON WOULD NOT BE IN LINE FOR AWARD EVEN IF ITS PROTEST ON THIS ISSUE IS UPHELD. ACCORDINGLY, TUNISON IS NOT AN INTERESTED PARTY SUCH THAT ITS ALLEGATIONS REGARDING M&M'S BID WILL BE CONSIDERED.

WHILE TUNISON HAS REQUESTED A CONFERENCE, WE ARE DISMISSING THIS PROTEST WITHOUT GRANTING A CONFERENCE UNDER 4 C.F.R. SEC. 21.3(G). SECTION 21.3(G) PROVIDES THAT A PROTEST MAY BE DISMISSED WHENEVER A PROTEST IS CLEARLY NOT REVIEWABLE BY THIS OFFICE.

WE DISMISS THE PROTEST.